[riddell] PRE-ASSEMBLY LEGISLATURES IN BRITISH CANADA 121 



Goldfrap being appointed by Mandamus from the King, the Council was 

 complete when Benjamin Price became the eighth member appointed by the Gover- 

 nor. Charles Stewart was appointed by Mandamus. 



How Hugh Finlay was appointed does not specifically appear but it must have 

 been by Mandamus. 



James Cuthbert was appointed by the Governor. I presume Col. Irving taking 

 over the Governorship on Murray's leaving for England made a vacancy, "forced," 

 Cuthbert told Carleton, "into the Council by Governor Murray on his departure 

 much against his will." Shortt & Doughty, p. 193. 



Thomas Mills was appointed by Mandamus. 



Some of the members (who had been appointed by Murray) wrote about this 

 time (October, 1766), to the new Governor, Sir Guy Carleton, of the practice of 

 appointing by Mandamus. Carleton had assumed the reins of government Septem- 

 ber 24, 1766; they contended that while His Majesty might have an undoubted 

 right to grant Mandamus where he pleased, that could not deprive the appointed 

 members of their "Right to Procedure or to a Seat in Council." Carleton had 

 called only certain members to Council Meetings and those left out supposed they 

 were being excluded from the Board — they claimed that if the number of Members 

 was limited by the Constitution or Custom, a Mandamus should be effective only 

 if there was a vacancy. 



Carleton's reply was not conciliatory — however, he informed them that the 

 Council was composed of twelve members, "those named and appointed immediately 

 by the King have the Preference next follow those appointed by Governor Murray 

 till the Seats are all full." Shortt and Doughty, pp. 193-195. 



He took occasion in his letter to make clear to the recalcitrants that he would 

 "on all matters which do not require the Consent of Council call together such 

 Councellors as I shall think best qualified to give me Information and further that I 

 will ask the Advice and Opinion of such Persons tho' not of the Council as I shall 

 find Men of Good Sense, Truth, Candor and Impartial Justice, persons who prefer 

 their Duty to the King and the Tranquility of his Subjects to unjustifiable Attach- 

 ment, Party Zeal and to all selfish mercenary views. After I have obtained such 

 Advice I will still direct as to me shall seem best for His Majesty's Service, and the 

 Good of the Province Committed to my Care." 



In other words while recognizing that the "Advice and Consent" of the Council 

 was necessary in legislation he declined their control in other regards, taking upon 

 him the sole burden and responsibility of Administration. That he was justified 

 in taking this position in law there can be no doubt, the time for Responsible Govern- 

 ment had not come. 



It may perhaps be of interest here to say that the Act of 1774 was fiercely 

 opposed in the Imperial Parliament. I copy part of a paper read at the May meeting, 

 1917, of the Royal Society of Canada. (Trans. R.S.C. for 1917, pp. 81 sqq.) Some 

 Origins of the British North America Act, 1867. 



"There was some excuse for Thomas Townshend, M.P., saying that the govern- 

 ment (1763-1770) was in fact despotic (Hansard, Vol. XVII, p. 1357). 



A new period began when the Quebec Act of 1774 came into force (May 1st, 

 1775) — notwithstanding the vigorous efforts of the Opposition, Townshend, 

 Dunning, Colonel Barre (who knew for a fact that the principal people of Canada 

 "take a liking to assemblies" and "think they have as good a right to have assemblies 

 as any other colony on the continent"), Sergeant Glynn, Charles James Fox (who 

 urged that it was not right for Britain to originate and establish a constitution in 

 which there is not a spark or semblance of liberty" and protested against the pro- 

 posal to "establish a perfectly despotic government contrary to the genius and spirit 



